Selman v. Shirley
| Decision Date | 18 April 1939 |
| Citation | 85 P.2d 384,161 Or. 582 |
| Parties | SELMAN ET UX. <I>v.</I> SHIRLEY ET AL. |
| Court | Oregon Supreme Court |
ON REHEARING
Fraud — Damages recoverable
11. A defrauded party is entitled to all out-of-the-pocket losses, to benefit of his bargain, to consequential damages, and, if property purchased by defrauded party has falsely been represented as improved with or containing some items which are not there, defrauded party is entitled to cost of installing them.
12. As respects purchaser's right to recover for fraud, purchase price agreed upon by parties in absence of other evidence fixes the value the property would have had if in all material respects it had been as represented.
Appeal and error — Evidence — Credibility
13. On appeal from judgment for purchasers who allegedly purchased property for price of $2,000 because of false representations, supreme court would disregard testimony of witness to effect that he offered vendor a "deal" whereby the property would yield vendor $2,000 and subsequently made same offer to purchaser, where most of the testimony was held inadmissible by trial judge and purchaser was in another state at time of the alleged transaction to which witness testified.
14. In action for fraud based on vendor's false representation that property was served by good irrigating stream and held growth of timber capable of yielding 4,000 cords worth 50 cents per cord, opinion evidence that property was worth the purchase price of $2,000 was insufficient to overcome admission that the property studded with stumps and without supply of water, would not be worth $2,000, which admission resulted from fact that the representations were made.
Damages — Breach of contract
15. In action for breach of contract, the law attempts to place the party injured by the breach in the position which he would have been in if the other party had performed, as nearly as that is possible, by means of a judgment for money.
Action — Adequate relief
16. Forms of action are abolished in order to make possible award of adequate relief to victim of a wrong regardless of form of action.
Fraud — Consequences of fraud
17. The proximate result and natural consequences of a fraud are determined from point of view of defrauded party, the primary concern of the law not being to make the wrongdoer's position safe.
Fraud — Measure of damages
18. The measure of damages for fraud inducing purchase of land is difference between actual worth of land and the worth of the land if its condition and quality had been as represented.
19. A property owner may convey any part of the property, and the estate may be divided horizontally, perpendicularly, or in any manner according to the will of the owner.
Fraud — False representations — Recovery
20. Purchasers, who were deceived into purchase of land through false representations that there were 4,000 cords of wood upon land possessing value of 50 cents per cord, could recover in action for fraud in same manner as if the quantity of the land had been misrepresented.
21. Where purchasers were deceived into purchase of land through false representations that there were 4,000 cords of wood upon land possessing value of 50 cents per cord, and vendors did not claim that timber would have been worth less than 50 cents per cord had the representations concerning its existence been true, the represented value of the timber would be employed as means of determining purchaser's damages.
22. In a purchaser's action for fraud based on false representations, if the representations can be made good by expenditure of a sum less than that which is difference between actual value and represented value, the lesser sum only is recoverable.
23. Punitive damages are recoverable in Oregon.
See 27 R.C.L. 359, 371, 382 (8 Perm. Supp., 5968)
26 C.J. Fraud, § 57
27 C.J. Fraud, § 228
Department 1.
Appeal from Circuit Court, Benton County.
Suit by S.W. Selman and his wife against H.E. Shirley and others to correct description of realty contained in a contract of sale and to recover judgment on ground of fraud. From a decree, plaintiffs appeal.
MODIFIED and REMANDED.
E.R. Woods, of Corvallis (John F. Conway, of Portland, on the brief), for appellants.
Thomas M. Morris, of Corvallis, for respondents.
This is an appeal by the plaintiffs from a decree of the circuit court which was entered in a suit instituted for the following purposes: (a) to correct the description of a parcel of real property contained in a contract wherein the plaintiffs undertook to purchase that property from two of the defendants, H.E. Shirley and his wife, Ruth; (b) to recover a judgment against the three defendants (the Shirleys and C.G. Blakely) upon charges that, through false representations, they induced the plaintiffs to undertake the purchase of that property; (c) to secure delivery of a deed to the above-described property which was placed in escrow concurrently with the execution of the contract; (d) to restrain the Shirleys from proceeding further with an ejectment action instituted by them for the purpose of removing the plaintiffs from the property; and (e) to gain judgment for the costs and disbursements of this suit.
The property with which this suit is concerned is 160 acres of land located in Benton county. In the aforementioned contract, which was executed by its parties (the plaintiffs and the Shirleys) July 1, 1933, the plaintiffs agreed to purchase this property for a consideration of $2,000, payable $500 upon the execution of the contract, and the balance in annual installments of $200, payable October 1 of the ensuing years. Defendant H.E. Shirley was the record owner of the property, and defendant C.G. Blakely was the agent who consummated this transaction. His commission was paid by H.E. Shirley, and we are satisfied that he was the defendants', and not the plaintiffs', agent. The circuit court, in a part of the decree unaffected by this appeal, held that Blakely was not guilty of any fraud and dismissed the suit as to him. Shortly after the execution of the contract the plaintiffs assumed possession of the property and have retained it ever since. They have paid a total of $750 upon the purchase price. After they had refused to make the payment of $200, payable on October 1, 1935, and had claimed that nothing further was due to the Shirleys because of alleged misrepresentations concerning the property, the Shirleys instituted the action of ejectment previously mentioned. Shortly thereafter the suit which we are now reviewing was filed by the plaintiffs.
The complaint alleges, the answer admits, and the findings state that, through mutual mistake, the contract failed to contain the correct description of the property. The decree, in a part not under attack by this appeal, corrects the error.
The findings state:
"The defendant, H.E. Shirley, knowingly and falsely represented to plaintiff that there was at least 4000 cords of wood on said premises; that said...
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Selman v. Shirley
...from Circuit Court, Benton County; Carl E. Wimberly, Judge. On petition for rehearing. Prior opinion adhered to. For prior opinion, see 85 P.2d 384. LUSK, and BAILEY, JJ., dissenting. E. R. Woods, of Corvallis (John F. Conway, of Portland, on the brief), for appellants. Thomas M. Morris, of......
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Fox v. Kane-Miller Corp., Civ. No. 71-600-K.
......) "where * * * the damages under the benefit-of-the-bargain rule are proved with sufficient certainty, that rule will be employed." Quoting Selman v. Shirley, 161 Or. 582, 609, 85 P.2d 384 (1938). However, in this case there was no claim or proof of damages under the benefit-of-the-bargain rule; ......
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...concerning the proposed operation. [124] A. O. Smith Corporation v. Applewhite, 255 F.Supp. 785 (S.D. Tex. 1965); Selman v. Shirley, 161 Or. 582, 85 P.2d 384 (1938). [125] 37 Am. Jur. 2d., Fraud and Deceit, §351. [126] Anno., "Out-of-Pocket or Benefit of Bargain as Proper Rule of Damages fo......